Whether it is lawful to follow an opinion truly and solidly probable favoring liberty, leaving a safer one equally probable, or even more probable, where only the liceity of the action is at stake?

[Note 1° that the question is here restricted absolutely to the sole licitness or honesty of the action, to avoid the confusion into which many authors have fallen, who did not sufficiently distinguish the licitness of an action from the validity of an act. For two following cases essentially differ: Is it licit on such a day not to fast, if truly doubtful be the law prescribing fasting on this day; and: Is it licit to employ doubtful matter for confecting a sacrament, when certain matter is present. In the former case there is question of the licitness of the action, and it is the very question of probabilism. In the latter case there is question of the validity of the act, and this question nowise pertains to the system of probabilism, as will be explained more fully below.

Note 2° that the contest here instituted is between an opinion truly and solidly probable favoring liberty and an opinion equally probable, or even more probable, favoring the law. For it must be observed 1° that opposite opinions are buttressed by grave reasons, so that the mind hesitates in suspense, considering the matter objectively, and then each opinion is truly and solidly probable. 2° The difference of probability is often merely subjective. For it can happen that what appears more probable to one seems less probable to another, because each is affected differently by reasons warring among themselves, on account of circumstances which, if changed, would incline each in a contrary manner to judge. This variable inequality, which cannot be notable, cannot bring it about that one of the opposite opinions become thus notable that the other no longer be truly and solidly probable. 3° Even if objectively one opinion be in fact more probable than another, this latter can be so far from being attenuated that it ceases to be truly and solidly probable. Our proposition therefore stands whenever an opinion favoring liberty is truly and solidly probable, although the opposite can be defended by somewhat stronger arguments. And thus must be understood the equiprobabilism of St. Liguori, who, while he denies it licit to follow the less probable opinion, leaving the more probable and safer, understands this latter to be certainly and notably more probable, not indeed little or doubtfully more probable, because then the former would be only doubtfully or lightly probable and could not draw the assent of a prudent man.

Note 3° that our proposition must be understood both of extrinsic probability, which rests only upon the decisions of doctors, and of intrinsic probability, which is drawn from consideration and weighing of the question to be solved. For he who is not sufficiently expert in theological matters, so as to be able himself to settle a practical doubt, prudently forms his judgment from the decisions of the more learned. Whence, when it has been ascertained by him that such an opinion is held as truly probable by authors of the best note, he has the probability required to act legitimately upon it. This was defined by the Holy See, when the holy Penitentiaria pronounced, in the year 1831, before St. Liguori was inscribed in the catalogue of saints and adorned with the title of Doctor of the Church, that a confessor following the opinions of this theologian was not to be disturbed, the reasons on which they rest not being weighed, because he judges them safe for this sole reason that the Holy See has declared nothing worthy of censure found in the Alphonsian writings.

These things posited.

I say : It is licit to follow an opinion truly and solidly probable favoring liberty, leaving the safer opinion equally probable, or even more probable, where there is question solely of the licitness of an action.

It is proved 1° by reason. Reflex principles here intervene, by which the proposition must necessarily be established.

FIRST PRINCIPLE : A doubtful law does not oblige.

Proof. The law does not oblige unless it have actually binding force. But the law against which is opposed an opinion truly and solidly probable has not actually binding force. Therefore such a law does not oblige. — The major does not seem to need proof, but only explanation. Law can be considered two ways, namely in fieri or in potency, and in fact accomplished, or in act; and this distinction is intimated by St. Thomas, Iª IIae, q. 90, a. 1, ad 1 : « Since law is a rule and measure, it is said to be in something two ways. In one way, as in the measuring and ruling; and since this belongs properly to reason, in this way law is in reason alone. In another way, as in the ruled and measured; and thus law is in all things which are inclined to something by some law. » In the former way, as you see, law existing in reason alone is in fieri, and if it already has some act, it is no other than the first act, from which it exists only in potency. But how law is in the ruled and measured, that is, in its subject, as regards the second act, which is simply and properly act, the Angelic Doctor declares below, a. 4, c, saying : « Law is imposed on others after the manner of a rule and measure.

But a rule and measure is imposed by this that it is applied to those things which are ruled and measured. Whence, in order that law obtain the virtue of binding, which is proper to law, it must needs be applied to men who ought to be ruled according to it. » But by this application law obtains its act, as understood above, that is, the second act. Therefore it does not bind except through this act. — Proof of the minor. The law has not actually binding force unless it have been really promulgated. But the law against which is opposed an opinion truly and solidly probable has not been really promulgated. Therefore it has not actually binding force. — Proof of the major. This proposition is equivalent to the following: The law does not oblige unless it really exists and is a true law. Moreover, it is certain that the law does not have full or true existence, or is not in second act and applied, and consequently is not a true law that binds, unless it has been promulgated. It is disputed among theologians whether promulgation is of the essence of law. Some say it does not belong to the essence, but nevertheless is a condition sine qua non that the law oblige, because the subject cannot be held to keep any law if he ignore it. Others teach, and better, as will be proved in the treatise on Laws, that promulgation is of the essence of law. St. Thomas, ibid., a. 4, solves the question thus : « Whether promulgation is of the nature (ratio) of law? » At the head of the objections the negative proposition is read : « It seems that promulgation is not of the nature of law. » After having said in the body of the article, as read above, that law is imposed « after the manner of rule and measure, » and that it is necessary, in order that it obtain binding force, that it be applied or imposed upon men, the Angelic Doctor continues : « But such application is made by this that it is led into their knowledge through promulgation itself. Whence promulgation itself is necessary in order that law have its virtue. » But having alleged the most trite axiom of law : « Laws are instituted when they are promulgated, » he places promulgation in the definition of law, which he establishes : « Law is nothing else than a certain ordination of reason for the common good, promulgated by him who has the care of the community. » Into whatsoever part anyone incline, he is compelled to admit our proposition, namely that the law has not actually binding force unless it has been really promulgated. — Proof of the minor. The law whose existence is not certain (or a doubtful law) is not really promulgated. But the law against which is opposed an opinion truly and solidly probable is not certain (or is a doubtful law). Therefore such a law is not really promulgated. — To guard against all ambiguity, it must be noted that there is not treated in this argument, as in the whole question, the promulgation made in the external forum for the community, which binds juridically all subjects ipso facto, who are held to know it and cannot commonly pretend ignorance to excuse transgressions and escape penalties, because they are presumed by right to have violated the law knowingly. We weigh here the force of a doubtful law in the internal forum, and it must be asked whether a truly doubtful law ought to be held as really promulgated in this forum, that is, whether it binds conscience. This standing. — Proof of the major. With St. Thomas we say, here q. 90, a. 1, c : « Law is a certain rule and measure of acts, according to which someone is led to act or withdrawn from acting; for law is said from binding (ligando), because it obliges to acting. » Whence law ought not to be considered in the abstract, but as it is something practical; and this rule and measure becomes practical only if applied really to a subject, as the Angelic Doctor teaches, ibid., a. 4, c, saying : « Rule and measure are imposed by this that they are applied to those things which are ruled and measured. Whence, in order that law obtain the virtue of binding, which is proper to law, it must needs be applied to men who ought to be ruled according to it. » Further, according to the same, ibid., « such application is made by this that it is led into their knowledge through promulgation itself. » But he who is truly uncertain about the existence of the law has no knowledge of this law. Therefore it is not really promulgated to him. If it be answered, as pleased some, that one doubting the existence of the law has some knowledge of this law, which is sufficient promulgation that he be held to regulate and measure himself according to this law, such objection is refuted by St. Thomas himself, explaining what must be understood by the knowledge required in order that law be really applied through promulgation. For he says, q. 17 de Veritate, a. 3 : « It must be known that obligation, taken metaphorically from bodily things to spiritual things, imports imposition of necessity... So stands the command of someone governing to bind in voluntary things, in that mode of binding which can happen to the will, as stands bodily action to binding bodily things by necessity of coercion. But the bodily action of an agent never induces necessity into another thing except through contact of its own coercion upon the thing in which it acts. Whence neither is anyone bound from the command of any king or lord, unless the command reach the very one commanded. But it reaches him through knowledge. Whence no one is bound by a precept to anything except through mediating knowledge of that precept: and therefore he who is not capable of knowledge is not bound by precept, nor is anyone ignorant of God's precept bound to doing the precept, except inasmuch as he is held to know the precept. But if he be not held to know it, nor know it, he is nowise bound from the precept. As therefore in bodily things the agent acts corporeally only through contact, so in spiritual things the precept binds only through knowledge... Since the precept binds only through the virtue of knowledge, nor knowledge except through the virtue of the precept. » But if anyone should dare affirm, with Patutio, most bitter attacker of St. Alphonsus de Ligorio, and with the chief of compensative Probabilism, of which below, that knowledge is here taken by St. Thomas in a broad sense, and to be understood of any knowledge whatever, even doubtful, whose motive is grave, so that simple opinion about the existence of the law is equivalent to promulgation, our Doctor closes this escape, saying, IIª IIae, q. 1, a. 5, ad 4 : « Knowledge together with opinion cannot at once exist simply concerning the same thing, because it is of the nature (ratio) of knowledge that what is known be judged impossible to be otherwise; but it is of the nature of opinion that what is opined be judged possible to be otherwise. » Whence, according to the Angelic Doctor, the law of which there is not had science or certain cognition neither reaches nor binds the subject, because it is not imposed upon him as befits such a bond, that is, through knowledge. But knowledge of law is acquired only through promulgation. Therefore the law whose existence is not certain is not really promulgated. —

The minor is evident. Yet if it needed proving, we should proceed thus. Two opposite probabilities necessarily induce uncertainty or doubt. But, when an opinion truly and solidly probable denies the existence of some law, two probabilities are opposed. Therefore the existence of this law is uncertain or doubtful.

All further proof is useless, indeed would be impossible, for evidence neither requires nor admits demonstration.

The foregoing argumentation is resolved thus :

A law which only probably exists is a doubtful law.

A doubtful law is not really promulgated.

A law which is not really promulgated has not actually binding force.

A law which has not actually binding force cannot really oblige.

It is confirmed by this argument instituted by Billuart in favor of probabiliorism : « He who does what he judges probably to be objectively honest, or contrary to no law, if perchance it be a prohibiting law, ignores it invincibly. But invincible ignorance of law excuses from formal sin, as is evident from this second proposition condemned by Alexander VIII : « Although there be given invincible ignorance of natural law, this in the state of fallen nature does not excuse the agent from formal sin on account of itself. » — Proof of the minor. He who seriously strives for truth, and does the whole that morally he can in order to attain it, if perchance he do not attain it, ignores it invincibly; because that ignorance is invincible which cannot be conquered by human effort, as says St. Thomas Iª IIae, q. 76, a. 2, c. But this whole thing he performs who, after sufficient examination, follows a probable opinion. Therefore. »

Where Billuart says more probable, we say probable, and indeed with equal right. For since the opinion favoring liberty is truly and solidly probable, the very existence of the law is only probable and cannot be demonstrated. The agent therefore is constituted in ignorance « which cannot be conquered by human effort, » that is, in invincible ignorance of the law, if perchance it exist. But the agent « is not bound except through mediating knowledge of the precept, » as says the Angelic Doctor. Therefore.

Therefore a doubtful law does not oblige.

You will say perhaps : Natural law was not promulgated. But nevertheless natural law obliges all men, and human laws proceed from this law. Therefore promulgation is not necessary in order that law oblige.

I answer. St. Thomas objected to himself this difficulty, Iª IIae, q. 90, a. 4, in the first place, saying : « Natural law especially has the nature (ratio) of law. But natural law has no need of promulgation. Therefore it is not of the nature of law that it be promulgated. » And he answers : « It must be said that promulgation of natural law is from this very thing that God inserted it into the minds of men to be naturally known. » Explaining this more clearly Sylvius says, on Iª IIae, q. 90, a. 4, at the end : « Actually then it [natural law] is promulgated to everyone when he receives cognition from God, dictating what according to right reason is to be embraced, what fled. » Ibid., q. 19, a. 4, ad 3, the Angelic Doctor, urging that it is necessary that law, inasmuch as it is a measure, be most certain, says of natural law, which is in us a participation of eternal law : « Although eternal law be unknown to us as it is in the divine mind, yet it becomes known to us in some manner through natural reason, which is derived from it as its proper image, or through some added revelation. » Mark these last words, from which it is inferred that, if reason were not sufficient for manifesting to us the divine will, at least in necessary things, the ignorance of man would have to be driven away by some supernatural revelation, in order that natural law become most certain, so that before this special promulgation it could not actually oblige.

SECOND PRINCIPLE. An uncertain law cannot induce a certain obligation.

Our proposition seems to have been sufficiently and even irrefragably demonstrated by the foregoing argument, wherein we weighed the essence of law, considering it especially as cause of obligation. Nevertheless, in abundance of right it will be well further to examine the effect of law and its process from law, proving that an uncertain law cannot induce a certain obligation. Therefore

It is proved thus. A natural effect is necessarily proportioned and homogeneous to its cause. But obligation is a natural effect of law. Therefore obligation is necessarily proportioned and homogeneous to law. — Proof of the first part of the major. A natural effect is contained in the cause. But the contained is necessarily proportioned to the containing and cannot exceed it; otherwise it would be at once contained and at least in part not contained, which implies contradiction. Therefore a natural effect is necessarily proportioned to its cause. — Proof of the second part of the major. According to St. Thomas, Ia p., q. 43, a. 7, c, « every effect represents its cause in some manner. » And he says the same, ibid., q. 4, a. 2, c : « Whatever perfection is in the effect must be found in the effective cause... For it is manifest that the effect preexists in virtue in the agent cause; but to preexist in virtue in the agent cause is not to preexist in a more imperfect mode, but more perfect. » But to preexist in virtue in the agent cause supposes the homogeneity of the natural effect to the cause. Therefore a natural effect is necessarily homogeneous to its cause. — Proof of the minor. The natural effect of law is that for which it is instituted and which proceeds from its nature. But this is nothing else than obligation; for, as says the Angelic Doctor, Iª IIae, q. 90, a. 1, c, « law is said from binding (ligando), because it obliges to acting, » and ibid., argument Sed contra : « To law belongs to command and forbid, » which is to oblige. Therefore obligation is a natural effect of law. — Whence is rightly concluded : Therefore obligation is necessarily proportioned and homogeneous to law.

This conclusion obtained, the following argument is instituted : Obligation is necessarily proportioned and homogeneous to law. But, if an uncertain law induced a certain obligation, this obligation would not be proportioned and homogeneous to the law. Therefore an uncertain law cannot induce a certain obligation. — Proof of the first part of the minor. The certain exceeds the uncertain, as proceeding further. Therefore certain obligation is not proportioned to an uncertain law. — Proof of the second part of the minor. The certain is opposed to the uncertain and excludes it. Therefore certain obligation is not homogeneous to an uncertain law. — Therefore, as asserted in the proposition, an uncertain law cannot induce a certain obligation.

It is confirmed by these words of St. Thomas already alleged in favor of the preceding principle, q. 17 de Veritate, a. 3, c : « Nor is anyone bound from the command of any king or lord, unless the command reach the very one commanded. But it reaches him through knowledge. Whence no one is bound by any precept except through mediating knowledge of that precept. » But knowledge of the precept, as we already noticed, is certain cognition of the law. Therefore an uncertain law cannot induce a certain obligation.

THIRD PRINCIPLE. Better is the condition of the possessor.

It must be observed that the present question is placed between law and human liberty. Moreover it is licit for man to use his liberty so long as he is not deprived of it legitimately, that is by some true law, because before law he possesses liberty, and this possession confers on him certain right, if no superior and contrary right destroy it.

It is proved. No one can be justly deprived of certain right except by him who has a superior and certain right. But before law liberty possesses certain right, and that this is so is evident; for any right subsists so long as another superior right does not destroy it, according to the known axiom : « There is no given right against right; » which is understood of a truly existing right. Whoever possesses such a right can defend it against anyone whatsoever not proving himself to have a contrary right which prevails. — Proof of the minor. To the intellectual nature of man free will essentially pertains, as St. Thomas demonstrates, saying, Ia p., q. 59, a. 3, c : « Certain things there are which act not from any judgment, but rather as acted and moved by others, as an arrow is moved by the archer toward an end. But certain things act with a certain judgment, yet not free, as irrational animals: for the sheep flees the wolf from a certain judgment whereby it judges him harmful to itself; but this judgment is not free to it, but implanted by nature. But only that which has intellect can act by free judgment, inasmuch as it knows the universal reason of good, from which it can judge this or that to be good. Whence wherever there is intellect, there is free will. » It must be adverted that our Doctor speaks here not of liberty of contrariety, which is not an essential dower of intellectual nature, but of liberty of contradiction, which the agent uses « inasmuch as he knows the universal reason of good, » which he attributes in this place to blessed angels, and ought equally to be attributed to man even as wayfarer. But intellectual nature to be ruled, measured, bound by law is conceived before the rule, measure and bond to be imposed upon it. And this the Angelic Doctor teaches, Iª IIae, q. 91, a. 1. He asks « whether there is any eternal law. » First he objects to himself : « It seems there is no eternal law. Every law is imposed upon some. But there was not from eternity anyone upon whom a law could be imposed; for God alone was from eternity. Therefore there is no eternal law. » He answers : « It must be said that things which are not in themselves exist in God, inasmuch as they are known by him and preordained, according to that, Rom., IV, 17 : Who calls those things that are not, as those that are. Thus therefore the eternal concept of divine law has the nature of eternal law, according as it is ordered by God to the governance of things foreknown by him. » Mark this : « The eternal concept of divine law is ordered to the governance of things foreknown. » Therefore by priority of reason man was first considered by God as free, and afterwards, by posteriority of the same kind, was considered the law by which man was to be bound. If this is true of eternal law, much more is it true of natural law and of human law. Therefore before law the liberty of man possesses certain right. And it is confirmed by these words of Sacred Scripture, Eccli., XV, 14-16 : God created man from the beginning, and left him in the hand of his own counsel. He added his commandments and precepts. If thou wilt keep the commandments, they shall keep thee. Thence it is evident that man was constituted essentially free. His liberty is restricted only by commandments and precepts which God added. Mark well this last word, added. Therefore as above. Therefore liberty cannot be deprived of its certain right except by a certain law.

Whence the following argument, which clinches the matter : Liberty cannot be deprived of its certain right except by a certain law. But a probable law is not a certain law. Therefore a probable law cannot deprive liberty of its certain right. — But that right is possession. Therefore in this matter better is the condition of liberty possessing.

By means of the three foregoing principles, demonstrated is the inefficacy of a doubtful law, in itself, as it is a cause, as to effect and in subject. Nothing more can be required to prove by reason such a law practically of no value.

Argument from authority.

This argument is excellently set forth thus by Fr. Gury^1 : « It consists of various headings, namely :

» 1° From the common consent of authors through many centuries. For since arose the dispute about probabilism, namely about the middle of the sixteenth century, innumerable straightway from every nation, state, condition, and from all religious orders undertook its patronage, among whom not a few shine illustrious in fame of doctrine, as Suarez, cardinal de Lugo, Lessius, Eusebius Amort, Bonacina, etc., and in recent times St. Alphonsus de Ligorio. But if some amid so great a multitude of doctors perhaps seem too far to have extended the limits of probabilism, let us surely guard against danger of this kind, retaining the limits of true probabilism, namely by not admitting an opinion as probable unless it rest upon a solid foundation, or unless solid reasons fight for it, as almost all understood probabilism, even before St. Liguori. » — To the authors enumerated by Gury must be added St. Antoninus, who re-

^{1 1} Compendium theologiae moralis, n. 64 et 65. Edit. P. H. Dumas, 1874.

lates the opinions of several ancient doctors, and notably of St. Thomas, which can be demonstrated only through the principles of probabilism.

» 2° From the commonly handed down doctrine of the present time. Indeed, if the schools diffused throughout the whole world be inspected, in most will be found handed down and defended the moderate doctrine of probabilism, especially at Rome, which deservedly ought to be held as the center of theological sciences, and where false doctrine, and indeed publicly, the Church being silent, certainly cannot be taught. So likewise in the whole of Italy, Spain, Germany, etc. — In France also itself it is now received almost with unanimous applause daily growing, that is the doctrine of St. Liguori, which assuredly wholly abhors probabiliorism. » — Since the time when Gury wrote there arose indeed in France the system of compensative Probabilism, which undeservedly usurped the name of probabilism, in order utterly to overthrow the principles of Liguorian doctrine. But that system attracted very few followers, and briefly, as an empty thing, will vanish.

» 3° From the approval of the Church, at least implicit, in the approval of the works of St. Liguori. For the sacred Congregation of Rites solemnly declared [in the judgment passed upon the writings before canonization] that there is « nothing worthy of censure » in the works of the holy Doctor. Again, in the decree of the holy Penitentiaria (July 5, 1831) approved by St. P. Gregory XVI, any professor of theology may follow and teach all the opinions which St. Liguori professes in his moral theology, nor is the confessor to be disturbed who follows them in practice in the sacred tribunal of penance. [The holy Doctor is praised more expressly in the Brief written by SS. D. N. Pius IX, April 7, 1847, to Peter Scavini, who teaches in his Compendium most openly the Liguorian probabilism : « We congratulate you heartily, says the Pontiff, because in composing these Institutions you have had nothing nearer your care than to propagate ever more and more the salutary doctrines of that most holy and learned man Alphonsus Maria de Ligorio, and therewith to imbue the minds of ecclesiastical youth especially. »] Finally by apostolic letters given July 7, 1871, whereby St. Liguori is declared Doctor of the universal Church, St. P. Pius IX established this : « Moreover the books, commentaries, opuscula, finally all the works of this Doctor, like those of other Doctors of the Church, we will and decree to be cited, produced, and, when occasion requires, employed not only privately but publicly in gymnasia, academies, schools, colleges, lectures, disputations, interpretations, sermons, discourses, and all other ecclesiastical studies and christian exercises. » — Now indeed St. Liguori in his works : 1° Teaches expressly and confirms with wondrous erudition all the speculative principles in which, the adversaries themselves confessing, the whole substance as it were of our doctrine consists, namely : that no one is held to keeping any law unless it be manifested to him as certain; — that an uncertain law cannot induce a certain obligation; — that a doubtful law does not oblige, etc. (Morale systema, n. 63-69). 2° As to practice, he asserts with us that it is licit to use true and solid probability against the law, provided he who uses it form his conscience by means of the reflex principles so often recalled. Him indeed he holds alone as such which is equal or almost equal in probability to the opposite: we, on the contrary, admitted it sometimes to be and remain such, although the opposite be more probable; but this does not impede him from agreeing with us as regards essentials; [for, as we noted, St. Liguori requires only that the opinion favoring liberty be truly and solidly probable; and even if the opposite opinion be more probable, it destroys not the truth and solidity of the contrary opinion whenever it is not notably more probable, in which case the former would become lightly probable and put outside the question]. Therefore in his works shines forth the approval of the Church and the principles of our doctrine.

» Add, with the Würzburg Theology, n. 252, to those who use probabilism with due moderation, following only opinions truly and solidly probable, that « few are the opinions manifestly and notably more probable, and concerning whose excess it is certainly established, than any which they affirmed manifestly and notably more probable, while it is known to oppose them, have the truth of theological probability. Thence equiprobabilism of St. Liguori and our moderate probabilism fall almost into the same thing. »]

Argument from consequences.

These consequences are set forth by the same Fr. Gury, ibid., n. 66-68. « 1° In the system of probabiliorists would follow a difficulty too grave for confessors. For a confessor would expose himself to danger of sinning through defect of sufficient diligence in weighing the various degrees of probability, especially in matter of restitution, when out of two equally probable opinions he followed one. For if he assumed the more benign opinion, he would sin by permitting that in which he apprehended probably existing deformity. If he acted according to the more rigid opinion, he would sin by imposing upon the penitent an uncertain yoke. Moreover, although the more rigid opinion appear to him more probable, when will he be certain that it really is such, and does not appear less probable to another confessor? Nor could anyone undertake the office of confessor unless perchance he were so versed in moral theology that he could certainly distinguish between more probable and less probable opinions: for the burden of doing includes the burden of knowing: but very few are able to perform this.

» Thence follows also that contradiction of confessors who, professing probabiliorism however they will, nevertheless not rarely say they cannot rigorously apply the principles of probabiliorism in the administration of the sacrament of penance, and therefore hold one thing in theory and something quite opposite in practice. Nor are wanting those who, placed in straits, easily judge more probable what elsewhere they held less probable. [This we ourselves above noticed, namely that greater probability is often merely subjective.] Would it not be better to establish and admit milder principles together with so many most wise doctors, and to draw them out more exactly into practice?

» 2° There would follow a most troublesome difficulty for the faithful.

For upon them would be imposed in doubts the obligation of inquiring which opinion is more probable: since the obligation of acting according to the more probable includes the necessary duty of inquiring it. Further, for the most part there is given moral impossibility of distinguishing between the more probable and the probable. And indeed I ask, whether I am bound to the more probable in itself or absolutely, or as regards me, or relatively? If the former, whence do I know it? If the latter, again there is question of intrinsic or extrinsic probability. If of the latter, which school is to be followed? which doctors are to be consulted? If of the former, the difficulty grows: whence shall I know whether I am sufficiently fit for this judgment, whether I lie in invincible ignorance or not? Suspenseful therefore and pressed by doubts, what shall I do? Shall I recur to masters? But, on hypothesis, it is mine to judge. How many and how great straits therefore impend over the faithful from that necessity of following the more probable or safer, is manifest. — So Segneri, opusc. on Probability.

» 3° There would follow perpetual fluctuation of doctrine. For from probabiliorism follows perpetual fluctuation of doctrine among probabiliorists themselves, as daily experience proves. But also from the very nature of probabiliorism arises that discrepancy. It is impossible indeed that they agree in fact; for, posited the obligation of following the opinion which appears to each more probable, necessarily some will resolve for the affirmative side, others for the negative. One will bind, another loose, and what appears to you more probable will easily seem to another equally or less probable. Thence follow confusion of decisions, perplexity of the faithful and straits; of modes, at least for the most part, it lacks. For only two things are to be weighed by probabilists, namely certain obligations and merely probable obligations. Although however true probability be not always established, yet no one does not see that, ordinarily speaking, it is much easier to discern whether solid reason or authority is had against a law than to bring forward some excess of probability. Therefore... etc. »

4° To these inconveniences set forth by Fr. Gury is superadded the following, which seems grave to us. No one will deny that a confessor has no other office regarding the law than to apply it to the penitent after the manner of a judgment: whence in this part he is not legislator but only minister of the law. But, if the confessor be a probabiliorist, and as such impose upon the penitent observance of a doubtful law because it appears to him more probable, the opposite opinion remaining truly and solidly probable, he applies not the law but makes it, and by his own authority constitutes himself legislator, making out of a truly doubtful law a certain law; for above we proved, with St. Thomas, that law cannot be imposed upon a subject unless it be a true law, that is unless it have been promulgated, such as a truly doubtful law is not. Therefore the confessor, in the case supposed, transgresses the limits of his mandate and subverts the order established.

This last inconvenience can be invoked a fortiori against tutiorism, which moreover was condemned, as will be seen below.]

The objections are solved.

[Obj. 1° from Scripture : It is read Eccli., XI, 27 : He that loveth danger shall perish in it. Ibid., XXXVII, 20 : Let the word of truth go before all thy works, and stable counsel before every act. I Thessal., V, 22 : From all appearance of evil refrain yourselves. But he who practically follows the doctrine of probabilism, 1° loves danger, because he exposes himself to sin; 2° before his work has not the word of truth, for the opinion he passes over is doubtful; 3° has not before his act stable counsel, for the counsel he admits rests only on a fragile foundation; 4° refrains not from all appearance of evil, since transgression even of a doubtful law cannot be called good. Therefore. Thus argue the probabiliorists themselves.

I answer. 1°. This argument can be retorted upon the probabiliorists; for, even when they act against a doubtful law from the more probable opinion, or such as appears such to them, there is present materialiter danger of sinning, which is not wholly removed except when certainly the law does not exist; and the same must be said of other inconveniences they object, which, if lightly diminished in their system, are nevertheless not entirely turned away.

I answer. 2° directly. Ad 1um. 1° There is treated there of final impenitence, as is evident from the context : A hard heart shall have evil in the last end, and he that loveth danger shall perish in it. Therefore this text is not aptly alleged here. 2° He who loves real danger shall perish in it. But, in our opinion, there is no danger of sin when one acts from right conscience. If perchance a truly existing law, that is objectively existing, be violated, sin will be merely material, and we are bound only to avoid formal sin. Therefore. — Ad 2um. If the opinion which the probabilist follows in the particular case be not intrinsically the word of truth, the reflex principle from which he forms his conscience is true, as we proved above; and since conscience is practically certain, the judgment whereby it is pronounced that the law is none and does not oblige accords with truth. Therefore. — Ad 3um. As to 2um. — Ad 4um. The Apostle indeed commands that one abstain from every act which offers the agent the appearance of sin. But, on hypothesis, the act does not offer the agent the appearance of sin, since morally certain is he that such act is opposed to no law. Therefore.

Obj. 2° : In canon law the following rule is everywhere enunciated : « In doubt the safer part is to be chosen. » But the probabilist embraces not the safer part; for the safer part is that which, standing for the law, would altogether remove sin. Therefore. So also the probabiliorists.

I answer. 1°. I retort the argument. The probabiliorist embraces not the safer part; for, etc. Therefore. — Therefore recourse must be had to absolute tutiorism. But this system was condemned by the Church. Therefore.

I answer. 2° directly. 1° True it is that in practical doubt the safer part is to be chosen, if there be question standing while that doubt remains. But, although the speculative-practical doubt be not removed, the probabilist acts not with practical doubt, since his conscience, by means of a certain reflex principle, has been made morally certain about the honesty of the action. Therefore the alleged rule is invoked undeservedly against probabilism. 2° As above proved, this principle is restricted in law to doubts of fact, which become practical, and to cases in which the validity of acts to be placed ex officio is imperiled; these wander outside the present question, as will straightway be demonstrated. Therefore it cannot be objected against us.

Obj. 3° : several Fathers proclaimed diversely the above-cited axiom of canon law.

I answer. : These authorities must be understood in that manner in which the axiom of law is interpreted. Moreover testimonies are not wanting whereby the doctrine of probabilism can be buttressed. Augustine says, Epist. 54, c. 2, n. 2 : « What is proved to be neither against faith nor against morals is to be held indifferent. » Greg. Naz., orat. 39 : « But if the matter is doubtful, let humanity and frailty conquer. »

Obj. 4° : A probable opinion does not remain probable in the concurrence of a more probable one; for lesser probability is elided by greater. Therefore.

I answer. I deny the antecedent. For if the opposite opinion is truly more probable, this happens from this that the other is probable; for the comparative supposes the positive. Whence, if what is objected were true, the more probable opinion would nowise be more probable, but certain. That this is false is manifest. — Moreover, reasons drawn from disparate principles not subordinate to each other cannot elide each other. For my reasons, notwithstanding opposite probability, and even greater probability, will stand in all their force, until you prove them false.

Obj. 5° : Probabilists act not with moral certainty, nor even from a reflex principle, since they cannot call improbable the opinion opposed to their own. Therefore. So our Billuart, dissert. VI, art. 1^1.

I answer. 1°. I retort it against the probabiliorists, from parity of reason.

I answer. 2° directly. Probabilists act not with moral

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certainty from the direct principle taken from the very question, I concede; for, if it were so, certainty would occupy the place of probability. They act not with moral certainty concerning the honesty of the action acquired by means of a certain reflex principle, I deny; for probabilists discuss the practical doubt in the same manner as probabiliorists, namely rendering their conscience certain through principles sought outside the doubtful matter, whereby it is demonstrated that the probable law is not, for the agent, a true law which reaches him and binds him. Therefore.

Obj. 6° : Prudence requires that sin be altogether avoided. But the probabilist avoids not altogether sin, since he does what he judges to be probably, or even more probably, sin. Therefore he acts imprudently. Therefore he sins.

I answer. 1°. I retort it against the probabiliorist, whose deed is also probably sin, and who by his own argument is compelled himself to embrace tutiorism.

I answer. 2° directly. I distinguish the major. Prudence requires that sin be altogether avoided, when the act is certainly and formally sin, I concede; when the act is not even certainly material sin and certainly is not formal sin, I deny. But the probabilist prudently judges his act not to be material sin, because a doubtful law, if perchance it exist objectively, he rationally holds as non-existing toward himself, through defect of due promulgation; and he pronounces with certainty, from the same unshaken principle, such an act not to be formal sin. Therefore he acts not imprudently. Therefore he does not sin.

Obj. 7° : To will something, even though perchance it be material sin, is to will formal sin. But thus acts the probabilist. Therefore he sins formally.

I answer. 1°. I retort it against the probabiliorist, who himself admits that an act done against a doubtful law can be material sin.

I answer. 2° directly. Let the major pass, and even it I concede. — I deny the minor. For the probabilist, judging prudently from a certain principle, holds that the law does not exist, does not admit his act to be materially evil, and wills it nowise under this respect. Therefore he does not sin formally.

Obj. 8° : If a sick man choose a remedy only probably efficacious, leaving another which is more probably efficacious, he acts imprudently. But greater care must be bestowed on the soul than on the body. Therefore. So Collet, with several other probabiliorists.

I answer. That this example is outside the question; for here there is question not of honesty of action but of efficacy of the remedy applied. Moreover the probabilist judges not only probably, but pronounces with certainty and legitimately that his act is not harmful to his soul.

Obj. 9° : A judge, in giving sentence, ought to follow the more probable opinion, as is evident from the condemnation of the following proposition by Innocent XI : « Probably I judge that a judge can judge according to an opinion even less probable. » Likewise, a physician licitly employs not a doubtful remedy, when there supplies to him a certain or more probably efficacious remedy. Therefore, in like manner, it is not licit, in acting, to follow a less probable opinion.

I answer. The examples alleged in the antecedent are not to the point. For in this twofold case there is not question of moral honesty or of licitness of placing the action, but of the obligation of attaining a determined end through certain or apter means, by reason of office or quasi-contract. Indeed we absolutely concede the antecedent of the argument, and shall demonstrate the same in the following article; but, parity denied, we deny the consequent and consequence.]

Consequences.

[You gather from the foregoing :

1° If it be licit to follow an opinion truly and solidly probable concerning the honesty of an action, although the opposite be more probable, then a fortiori it is licit to act according to a more probable and most probable opinion favoring liberty. This need not now be demonstrated. Moreover, as regards the most probable, the following proposition of Sinnich was condemned, which is third among those

31 condemned by Alexander III : « It is not licit to follow the most probable opinion among probable ones. » Besides, an opinion favoring liberty cannot be most probable without the opposite being slightly, or even most slightly, probable; and besides the reasons alleged above must be invoked the principle : « In moral matters little is reputed as nothing. » Whence then is had a certain kind of moral certitude of the non-existence of the law.

2° It is not licit to follow a slightly probable opinion, leaving the safer. For no one acts licitly unless he act prudently, that is unless he be morally certain of the honesty of his action. But, when the opinion favoring liberty is only slightly probable, from it one acts not with moral certainty concerning honesty of action, or prudently, since, on the contrary, practically it is morally certain that the law exists. Therefore. Whence was condemned by Innocent XI this proposition, n. 3 : « Generally speaking, trusting to intrinsic or extrinsic probability, how slight soever, provided one depart not from the bounds of probability, when we do something, we always act prudently. » Rejected likewise by Alexander VII, n. 27, was this other proposition which refers to extrinsic probability : « If it be free to any junior and modern author, the opinion must be held probable, provided it be not established that it was rejected by the holy apostolic See as improbable. » Which proposition must be understood in this sense, that the opinion be new, departing from common doctrine, its author reckoned by no title among theologians of good repute.

3° It is not licit to follow an opinion only probably probable against the law, because the probability favoring liberty is not true and solid, and it cannot prudently be pronounced that the law de jure does not exist toward the agent. He who acted from such probability would act only probably, that is in practical doubt and not with moral certainty of honesty of action. Further, he who thus acts acts not from conviction (ex fide), and sins.

4° It is not licit to follow an opinion probable to others, even more learned, which is actually improbable to the agent. The reason is because, while he thus judges, the action appears to him illicit, or at least not certainly licit; and acting against his own judgment he would inflict violence upon his conscience, and by reason of a practically practical doubt he would sin. Therefore no one ought to act according to another's opinion unless he know and approve the reasons on which it rests, or can at least prudently judge it safe to embrace the opinions of such a theologian, v. g., St. Liguori.

5° Even if the opinion fighting against the law be truly and solidly probable and in itself licit to follow, it can happen, on account of circumstances, that someone in a particular case ought practically to pass over the safer part, lest he give scandal to those to whom he would seem to violate an existing law. Certainly he is not bound to decline the burden of a doubtful law, and certainly he is bound not to scandalize his neighbor. This pertains to the question of indirect obligation, elsewhere.

6° Mark diligently that the question of probabilism is one of strict right. We intend to prove this one thing, namely that no obligation exists of observing a truly doubtful law, so that in this case the liberty of the agent remain whole, and there be not present danger of formally sinning by omitting such a law, even if in fact perhaps the law exists and the act done against it be in itself material sin, or better the matter of sin. Indeed he will be praiseworthy who, seized with zeal for perfection, studies in doubtful cases to avoid even possible material sin, denying himself the legitimate use of his liberty and acting just as if the doubtful law were a certain law. But this was not to be a hortatory discourse toward perfection, but rather it was to be established that those who follow the common ways are bound only by certain laws.]